The [Headless] Horseman was supposedly a Hessian soldier of unknown rank; one of many such hired to suppress the American Revolutionary War. During the war, the Horseman was one of 548 Hessians killed in a battle for Chatterton Hill, wherein his head was severed by a cannonball. . . . Thereafter he appears as a ghost, who presents to nightly travelers an actual danger . . . of decapitation. He carries his own head on his person or that of his horse and uses it as a weapon, though he also carries a sword.

The blog of LegalTimesreports on a recent panel discussion on the alleged overcriminalization of business conduct:

The U.S. Justice Department's stepped up enforcement in the pharmaceutical industry has struck "the fear of God" in executives, a top lawyer at GlaxoSmithKline said today, addressing whether prosecutors have gone too far in building cases rooted in business conduct.

The Glaxo lawyer, Elpidio Villarreal, vice-president of global litigation at the pharmaceutical company, said the rhetoric coming out of DOJ in the last couple of years concerns the ability and intent of the government to hold accountable an executive for the person's mere position in the company.

Executives, Villarreal said, speaking generally at a panel discussion sponsored by DRI--The Voice of the Defense Bar, are now living “in fear of losing everything" not for personal conduct but for what someone else may have done.

“It does seem to be imposing an astronomical burden on a well-meaning, well-intentioned, competent executive,” Villarreal said. GlaxoSmithKline, he said, has “spent a fortune” building and strengthening what he called a “robust” corporate compliance program. . . .

The panel’s moderator, Jonathan Rosen, a white-collar defense partner in the Washington office of Shook, Hardy & Bacon, described what he called a “highly aggressive” enforcement environment.

Rosen posed questions to the panel members to explore the extent to which the government is criminalizing good-faith business decisions.

Can the number of "unnecessary divorces" be reduced? At Public Discourse, Maggie Gallagher calls attention to the Second Chances Act, which aims to do just that:

Former Georgia Chief Justice Leah Sears (on the short list for Obama appointments to the Supreme Court) and family relations scholar Professor William Doherty have teamed up to produce with what they call, without irony, a modest proposal to reduce “unnecessary divorce”: theSecond Chances Act. . . .

The Second Chances Act proposes new model legislation that includes a one-year waiting period for divorce, along with a requirement that parents of minor children considering divorce take a short online divorced parenting education course, which would include information on reconciliation. Spouses could trigger the one-year waiting period without actually filing for divorce by sending their mates a formal letter of notice. These requirements would be waived in cases of domestic violence.

Now, some might ask, “Unnecessary divorce? What’s that?”

The genesis of the Second Chances Act was Minnesota Judge Bruce Peterson’s observation that at least some of the people he was seeing in his court looked like they needed a “rest stop” on the “divorce superhighway.” “When Judge Peterson looked at his own court system, widely acknowledged as a progressive one,” Sears and Doherty write, “he saw attempts to meet nearly every need of divorcing couples--legal and financial assistance, protection orders, parenting education, and more--except for reconciliation.”

On October 5, the Supreme Court heard oral argument in Hosanna-Tabor Church v. EEOC. This case presents the question of whether the “ministerial exception” to federal employment discrimination statutes--an exception that generally shields religious organizations from claims of unlawful discrimination by employees who perform religious functions--applies to a teacher at a religious elementary school.

To discuss the case, we have Mark Rienzi, who is a professor at the Columbus School of Law at Catholic University.

This past weekend marked the 20th anniversary of Justice Clarence Thomas's appointment to the Supreme Court. In honor of that milestone, former Thomas clerk John Yoopraised the justice in the Wall Street Journal:

Clarence Thomas set the table for the tea party by making originalism fashionable again. Many appointees to the court enjoy its role as arbiter of society's most divisive questions--race, abortion, religion, gay rights and national security--and show little desire to control their own power. Antonin Scalia, at best, thinks interpreting the Constitution based on its original meaning is "the lesser evil," as he wrote in a 1989 law journal article, because it prevents judges from pursuing their own personal policies. Justice Thomas, however, thinks that the meaning of the Constitution held at its ratification binds the United States as a political community, and that decades of precedent must be scraped off the original Constitution like barnacles on a ship's hull.

Continuting the tea-party theme, Yoo concluded:

There is a price for Clarence Thomas's 20 years of purity of principle and clarity of expression. He will never be the builder of coalitions, the leader of majorities, or the rudderless vote swinging in the middle. . . .

Instead, he is swinging for the fences. The true audience for his call for a return to Founding principles is the American people, not a few federal judges.

Also in celebration of Justice Thomas' 20 years of service, National Review organized an online symposium on the subject. One of the symposiasts, Curt Levey, commented:

Nowhere is Clarence Thomas’s independent thinking, clarity, and courage more powerful than on issues of race. Other Justices share his colorblind reading of the prohibitions on racial discrimination, but none expresses it with the passionate voice and righteous indignation that infuse Thomas’s opinions on the subject. Largely because of that voice, Thomas has grown from being the first black conservative on the Court to the most influential black conservative of our lifetime.

Over at the Lawfare blog, John Bellinger calls attention to two important international law cases the Supreme Court recently decided to hear. The cases are Kiobel v. Royal Dutch Petroleum/Shell and Mohamad v. Rajoub, and they will be heard in tandem. Following a clear circuit split, Kiobel addresses the question of whether corporations may be held liable for violations of the “law of nations” under the Alien Tort Statute. That statute permits U.S. courts to hear human rights cases brought by foreign citizens regarding conduct committed outside the U.S.

The Kiobel case will be closely monitored by human rights groups and by foreign governments. Foreign governments have objected strenuously to the State Department about the extraterritorial application of the Alien Tort Statute to the activities of their corporations outside the United States, arguing that this is contrary to international law. . . .

[A]lthough the Court did not ask the Solicitor General for his views, the Administration will likely decide to file a brief. It will be interesting to see whether the Obama Administration will decide to support liability for corporations, especially in an election year.

The question in Mohamad is "whether the Torture Victim Protection Act of 1991 permits actions against defendants that are not natural persons"--in other words, defendants such as corporations and organizations. In the case, the family of a man who was a U.S. citizen sued the Palestinian Authority and the Palestine Liberation Organization for allegedly torturing and killing him. The D.C. Circuit dismissed the law suit since the defendants were not natural persons.

In an article reporting remarks Justice Elena Kagan recently made on her Jewish faith, CNN divulges some information of interest to followers of Second Amendment rights. The justice was speaking to an audience at Beth Tfiloh, a Modern Orthodox synagogue in Baltimore:

[Kagan] recalled paying a courtesy call on Sen. Benjamin Cardin, D-Maryland, who is a member of Beth Tfiloh, shortly after her nomination to the court by President Barack Obama in May 2010. Cardin asked her about gun rights, and remarked she may not realize how important the issue is to some Americans.

She admitted never having owned or fired a gun before. "But I told Sen. Cardin if I was fortunate enough to be confirmed, I would go hunting with Justice Scalia."

And she has, joining her conservative colleague on an excursion to a Washington-area shooting range and on several hunting trips, until now never reported. Her host at the synagogue event was surprised.

"You're Jewish," deadpanned Rabbi Mitchell Wohlberg.

"Yeah, but it turns out, it's kind of fun," said Kagan, laughing.

Presumably, the rabbi was referring to the Jewish prohibition on hunting for sport.

Professor Richard Epstein takes Justice John Paul Stevens to task for the latter's alleged "public outbursts" during his book tour. Although Epstein finds something to praise in Justice Stevens' high court decisions and recent book, Five Chiefs: A Supreme Court Memoir, the professor writes in Defining Ideas:

Justice Stevens’ public comments will have, I fear, the effect of diminishing the Supreme Court and, alas, of Justice Stevens himself. Whatever the merits of the book, the multiple interviews that he has given about the book have distilled its thesis to a few quotations that have the unintended consequence of conveying the weakness of his intellectual thought. . . .

The first example in this regard is his statement that he regarded the position of the Bush team in Bush v. Gore as “frivolous.” According to Politico,

Stevens recalls that he bumped into fellow Justice Stephen Breyer at a Christmas party, where the two men discussed the issue.

“We agreed that the application was frivolous,” Stevens writes. “To secure a stay, a litigant must show that one is necessary to prevent a legally cognizable irreparable injury. Bush’s attorneys had failed to make any such showing.”

“Frivolous” is a fighting word. But just what was Justice Stevens thinking? Clearly the statement is a cheap shot at those who took the opposite side in Bush v. Gore. As a matter of decorum, it seems wrong to invoke Justice Breyer’s name while he is still sitting on the Court, and wrong as well to take potshots at those like Justices Scalia and Thomas, who are also on the Supreme Court, or Chief Justice Rehnquist, who is dead. Put otherwise, all sitting justices are subject to all sorts of institutional constraints that make it inappropriate for them to respond to Justice Stevens. Knowing that, it seems wise for him to leave the harsh words to others.

After discussing what he believes to be other examples of Justice Stevens' flippancy, Epstein concludes:

Taken as a whole, what is so troublesome about Justice Stevens’ general views is the unmistakable sense that he has erased the line between what he thinks of as politically unwise and constitutionally required. Indeed, on his view of the world, constitutional law seems to depend on his own sense of right or wrong.

The Supreme Court yesterday agreed to hear a case regarding the Stolen Valor Act, which makes it a federal crime to lie about receiving military medals. The Ninth Circuit Court of Appeals has held that the law violated free speech rights. Other federal appellate courts had been poised to hear cases regarding the Act.

Tomorrow, the Federalist Society is hosting a teleforum in wich experts Erik Jaffe and Professor Eugene Volokh will discuss the posture and merits of the case. The details are:

On October 4th, the Supreme Court heard oral argument in Howes v. Fields. The question in this case is whether a prisoner, whenever he is isolated from the prison population for the purpose of being questioned, is considered “in custody” and thus required to be given Miranda warnings.

To discuss the case, we have Mark Brnovich, the Director of the Arizona Department of Gaming.

A French court has ruled that internet service providers in the country must block access to a "cop-watching" website that published photos and videos of police officers in the line of duty. The New York Timesreports that the officers were shown:

arresting suspects, taunting protesters, and allegedly committing acts of violence against members of ethnic minorities.

Law enforcement officials, who had denounced the site as an incitement to violence against the police, welcomed the decision. . . .

But free speech advocates reacted with alarm, saying the ruling, issued Friday, reflected a French tendency to restrict Internet freedoms.

The ruling contrasts with those by U.S. courts, which have held that such websites are protected by the First Amendment. The organization behind that banned website is in fact an offshoot of a network of American cop-watching websites. The American network claims to be providing "reverse surveillance" to protect the public, especially members of minority groups, though critics have argued that the sites choose and edit the videos to falsely, and sometime dangerously, portray the police in a negative light.

NPR's Nina Totenberg yesterday reflected on Clarence Thomas' tenure on the Supreme Court. She interviewed Eugene Volokh, Ed Whelan, and Charles Fried, among others, about whether Justice Thomas is a conservative or a radical, and if it matters whether his decisions are or are not in the "mainstream."

Totenberg introduced the justice as:

not just a member of the conservative block of Supreme Court justices, he is without a doubt the most conservative justice, willing to regularly strike down long-accepted case law that has been in place for decades, in some cases as much as a century.

Professor Volokh told NPR, "Thomas is somebody who has articulated the sharpest and clearest originalist vision of anybody on the court," to which Totenberg retorted, "But that vision is so far removed from modern constitutional law that critics see it as little more than trying to turn the clock back."

On October 3rd, the Supreme Court heard oral argument in Douglas v. Independent Living Center of Southern California. The question in this case is whether Medicaid recipients and providers can sue a state that does not pay the reimbursement rate required by the Medicaid Act.To discuss the case, we have Roderick Hills, professor at NYU Law.

Court clashes in the WikiLeaks case have shed rare light on a federal law that allows the government to obtain information from e-mail and cell phones without a warrant. The WSJreports:

The U.S. government has obtained a controversial type of secret court order to force Google Inc. and small Internet provider Sonic.net Inc. to turn over information from the email accounts of WikiLeaks volunteer Jacob Appelbaum...

The government's request included the email addresses of people Mr. Appelbaum corresponded with the past two years, but not the full emails.

Both Google and Sonic pressed for the right to inform Mr. Appelbaum of the secret court orders...

Law enforcement uses the law to obtain some emails, cellphone-location records and other digital documents without getting a search warrant or showing probable cause that a crime has been committed. Instead the law sets a lower bar: The government must show only "reasonable grounds" that the records would be "relevant and material" to an investigation....

As a result, it can be easier for law-enforcement officers to see a person's email information than it is to see their postal mail.

Another significant difference: A person whose email is inspected this way often never knows a search was conducted. That's because court orders under the 1986 law are almost always sealed, and the Internet provider is generally prohibited from notifying the customer whose data is searched.

A number of previous court decisions have questioned the constitutionality of the law, which some believe violates the Fourth Amendment protections against unreasonable searches and seizures. In December, the Sixth Circuit held that it government violated the constitution in obtaining 27,000 e-mails without a search warrant.

Google, AT&T, Microsoft, and other technology companies are currently lobbying Congress to amend the law to require search warrants for digital information.

The AP is reporting that the Department of Justice filed a motion today asking the 11th Circuit of Appeals to put a halt to Alabama's new immigration law, which some have called the strictest in the country. According to the news story, the feds are arguing that the law:

The motion...claimed Alabama's new law is "highly likely to expose persons lawfully in the United States, including school children, to new difficulties in routine dealings."

A federal judge earlier upheld two key provisions in the law that allow authorities to question people suspected of being in the country illegally and hold them without bond, and let officials check the immigration status of students in public schools.

The Federalist Society takes no position on particular legal or public policy initiatives. Any expressions of opinion are solely those of the author(s). We hope this blog will foster discussion regarding important current issues.